The Mail on Sunday’s failed appeal over its publication of a letter written by Meghan, the Duchess of Sussex, to her estranged father is a sign that public figures now hold many more cards when it comes to taking on the British media.
While the case did not change the law, it was emblematic of the changing balance of power between news organisations and celebrities since a statutory right to privacy was introduced in England and Wales in 2000.
The much-publicised revelations that Meghan had written the letter with the possibility it might be leaked in mind and that one of her team had supplied authors of a book about her with information, apparently with her knowledge, were not enough to override her right to privacy.
Sailesh Mehta, a human rights lawyer, said that these issues were treated as a “sideshow” of “froth and frenzy” by the court of appeal judges.
Persephone Bridgman Baker, a senior associate at the leading law firm Carter-Ruck, said: “The case cites and applies the long legal principle that ‘[a] person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters’; a crucial tenet of privacy law in this jurisdiction which enables public figures who live aspects of their life in the public domain to still retain control over private matters.”
While Meghan described her victory as “precedent-setting”, the written judgment by the master of the rolls, the president of the court’s civil division, seemed concerned to stress that it was not, referring to the “narrowness of the issues” and “very confined, mostly factual, questions”.
British news outlets can still legally publish private correspondence, but they have to be confident that doing so is in the public interest – or, alternatively, be confident that the subject of the story will not sue.
On the first point, British judges have increasingly found against media outlets when it comes to invasions of privacy, leaving newspapers and broadcasters needing to prove an ever-higher level of public interest in order to justify running stories.
In this case, the appeal court judges agreed with the initial ruling that the contents of Meghan’s letter to her father “were personal, private and not matters of legitimate public interest” – and therefore the Mail on Sunday could not legally justify publishing it in a national newspaper.
On the second, Meghan and her husband Prince Harry’s decision to launch an all-out legal battle with the British tabloid media may have caught the Mail on Sunday by surprise. Although there are previous court cases involving the royals taking on the media – in 2005, Prince Charles won a court battle with the Daily Mail after it published extracts from his personal account of the handover of Hong Kong – on the whole they tend to prefer more discreet behind-the-scenes deals to settle scores.
The precedent Meghan may have set may be more in terms of her willingness to take legal action against a media outlet – thereby following in the footsteps of other celebrities who fiercely protect their image – rather than the ruling itself.
Mehta said: “A slowly moving pendulum which sometimes appears to swing in favour of the press’s right to publish and sometimes appears to side with the right to privacy, has not moved at all and is unlikely to do so for some time.
“There are parallels between the ‘Princess and the Pea’ fairytale and the ‘Duchess and the Press’ modern drama. Both tales are about testing the sensitivity of a royal by an irritating intrusion. In both, the royal passed the test.”
The case also plays into the behind-the-scenes intrigue at the Daily Mail. Ted Verity, the Mail on Sunday editor who published original letter back in August 2018, was last month promoted to run the Daily Mail following the sacking of the former editor Geordie Greig.
Now, the newspaper has one final decision to make: does it risk running up an even bigger legal bill with one last roll of the dice by seeking the right to challenge the court of appeal’s decision at the supreme court? Or do they fold and implicitly accept that the boundaries of British privacy law have tightened?